The School Choice Barrier from the State of Maine
We often complain about the rancor in politics these days, but politics has always been filled with acrimony and bitterness. Heck, in 1804 the sitting vice president of the United States, Aaron Burr, shot and killed one of the founding fathers, Alexander Hamilton, in a duel. One of my favorite stories of political partisanship, however, is much less known. During the 1884 presidential election, Democrats derided the Republican nominee with the chant, “Blaine, Blaine, James G. Blaine, the continental liar from the state of Maine!”
You may never have heard of James G. Blaine. He didn’t win. Yet, for more than a century we have been living with one of Blaine’s legacies—Blaine amendments. While he was a senator, Blaine offered an amendment to the U.S. Constitution that would prevent the federal government from funding sectarian institutions. It was widely known that the amendment stemmed from anti-Catholic sentiment. In 2000, Justices Thomas, Rehnquist, Scalia, and Kennedy stated in Mitchell v. Helms that “it was an open secret that ‘sectarian was code for ‘Catholic.’” The federal amendment failed, but similar versions would be installed later in 37 state constitutions.
Many state officials have cited their Blaine amendments as a reason that private school choice programs would be unconstitutional. These amendments have also prevented religious institutions from receiving funds for non-religious activities. For instance, the amendment was used to bar Trinty Lutheran Church in Columbia, Missouri, from participating in the state’s scrap tire program, which helps nonprofits resurface playground surfaces. Trinity Lutheran appealed this decision all the way to the United States Supreme Court and won.
There is still some debate, as my colleague Mike McShane has noted, as to what impact the Trinity ruling will have on school choice legislation. Our first indication, however, is that the court’s repudiaiton of anti-religious sentiment may bode well for private school choice programs. On June 27, the day after the Trinity Lutheran ruling, the nation’s high court vacated the Supreme Court of Colorodo’s ruling in the Douglas County, Colorado, voucher program, which had been found unconstitutional. The case has been remanded to the state supreme court in light of the Trinity Lutheran ruling.
The Institute for Justice, a group that supports school choice, has long stated that Missouri’s Blaine Amendment was relatively strong and has suggested vouchers may not be feasible in the state. It will be interesting to see if the decisions of the U.S. Supreme Court in the Trinity case will further impact Blaine amendments in Missouri and other states. We may never get rid of rancor in politics, but this may be the case that helps us say goodbye to Blaine, Blaine, Amendment Blaine, the school choice barrier from the state of Maine.
